...My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue — efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.

Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments.

That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced “confession,” then whether a defendant endured waterboarding is immaterial in determining guilt or innocence.

There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, “We don’t do stuff like that.”

This guy ended his military career to save America's honor, and nobody cared.

Meanwhile McCain is backpedaling away from what was once a principled stand against torture. The Khalid trial may be a factor in his craven reversals.

Khalid Mohammed doesn't matter any more. What matters is that America has another chance to disgrace itself, or a chance to move away from the Bush legacy.